Mark Trevaskis v Swansea Community Cottage Inc
[2024] FWC 1950
•24 JULY 2024
| [2024] FWC 1950 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Mark Trevaskis
v
Swansea Community Cottage Inc
(C2024/4010)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 24 JULY 2024 |
General protections application involving an alleged dismissal – jurisdictional objection – application filed outside 21 day time limit – no exceptional circumstances – application dismissed.
Introduction
On 14 June 2024, Mr Trevaskis lodged an application pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving a dismissal. The respondent to the dispute is Mr Trevaskis’s former employer, Swansea Community Cottage Inc (SCC), a not-for-profit organisation run by a volunteer committee.
Mr Trevaskis contends that SCC contravened the general protections provisions in dismissing him from his employment as the Executive Officer of SCC. SCC contends that Mr Trevaskis’s application was filed outside the 21 day time period and there are no exceptional circumstances to warrant an extension of time being granted.
This decision only deals with SCC’s contention that the application was filed outside the 21 day timeframe provided for in the Act and an extension of time should not be granted.
On 18 July 2024, I conducted a hearing in relation to the application by Mr Trevaskis for an extension of time. Mr Trevaskis gave evidence at the hearing. Both parties made submissions on the extension of time issue.
Exceptional circumstances?
Section 366(1) of the Act states that a general protections application involving a dismissal must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 366(2). Mr Trevaskis’s employment with SCC came to an end on 17 May 2024. Mr Trevaskis lodged his general protections application in the Commission on 14 June 2024. The application was therefore filed 7 days outside the 21 day period. Mr Trevaskis asks the Commission to grant a further period for the application to be made under s 366(2).
The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[2]
The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.
Reasons for the delay
The delay required to be considered in s 366(2)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[5]
The relevant timeline of events may be summarised as follows:
On 3 May 2024, Mr Trevaskis was sent a letter of termination. It stated that his employment would end on Friday, 17 May 2024.
On 14 May 2024, Mr Trevaskis filed in the Commission an application under s 773 of the Act for the Commission to deal with an unlawful termination dispute. Before filing his unlawful termination application, Mr Trevaskis did not obtain legal advice but he did speak to an employee from the Commission about the types of application he could make. He was directed to information for him to read on that subject matter. Mr Trevaskis also read the unlawful termination application form, which informed him that unlawful termination claims can be made by employees who are not in the national system or national system employees who are not entitled to make a general protections application. The unlawful termination application also referred Mr Trevaskis to the General Protections Benchbook for more information about who is covered by the national system and the differences between unlawful termination and general protections dismissal laws.
At 6:22pm on 7 June 2024, Mr Trevaskis received an email in the following terms from the chambers of Deputy President Boyce:
“Dear Parties
I refer to the above matter which has been allocated to Deputy President Boyce.
By virtue of s 723 of the Fair Work Act 2009 (Act), it is apparent that the Commission does not have the power to deal with this application.
Both the Applicant and the Respondent are a “national system employee” and “national system employer” respectively (see ss. 13, 14, 30M and 30N of the Act, noting that NSW is a “referring State”). The fact that an employer is a not-for-profit in NSW does not alter the position.
In the circumstances, the Deputy President proposes to dismiss the Form F9 Application (filed on 13 May 2024) by Mr Trevaskis. Parties are to provide any written submissions they wish to make (via reply email) on this issue by no later than 4:00PM AEST on Thursday, 13 June 2024.
Yours faithfully”
I accept Mr Trevaskis’s evidence that he did not read the email from Deputy President Boyce’s chambers until the following day, 8 June 2024.
On 11 June 2024, Mr Trevaskis sought legal advice from a solicitor about his unlawful termination application.
On 12 June 2024, Mr Trevaskis obtained legal advice to the effect that he should take urgent steps to file a general protections application in the Commission.
On 13 June 2024, Mr Trevaskis filed submissions in the Commission in response to the email from Deputy President Boyce’s chambers dated 7 June 2024.
Later on 13 June 2024, Mr Trevaskis was informed that his unlawful termination application had been dismissed under s 723 of the Act.
On 14 June 2024, Mr Trevaskis filed his general protections application in the Commission.
Taking into account all the circumstances, I do not consider the matters relied on by Mr Trevaskis, individually or together, to be an acceptable or reasonable explanation for the 7 day delay in filing his general protections application. Mr Trevaskis is clearly an intelligent person and was employed by SCC at a senior level as its Executive Officer. He was directed to read information to enable him to determine which type of application he should make in relation to the termination of his employment. The unlawful termination application filed by Mr Trevaskis clearly informed him that he could only make an unlawful termination application if he was not in the national system or was not entitled to make a general protections application. The unlawful termination application also referred Mr Trevaskis to the General Protections Benchbook for more information about who is covered by the national system and the differences between unlawful termination and general protections dismissal laws. Notwithstanding this, Mr Trevaskis was not able to explain at the hearing why he formed the belief that he was not in the national system or was not entitled to make a general protections application. I am satisfied that had Mr Trevaskis read with care the information on the unlawful termination application form and the relevant part of the General Protections Benchbook, he would have discovered that he was not entitled to make an unlawful termination application. Alternatively, if Mr Trevaskis was still unsure after reading the information, he could have called the Commission’s advice line again or sought legal advice. Further, it should have been clear to Mr Trevaskis from the email sent to him from the chambers of Deputy President Boyce on 7 June 2024, which he read on 8 June 2024, that he had made the wrong application. Yet it took him another 6 days after 8 June 2024 to file a general protections application. Even after receiving legal advice on 12 June 2024 to urgently file a general protections application, Mr Trevaskis filed submissions in his unlawful termination application on 13 June 2024 and did not file his general protections application until 14 June 2024.
Mr Trevaskis relied on a decision of Lane v Kangaroo Island Dive & Adventures Pty Ltd[6] in support of his contention that he had an acceptable reason for his delay. That case can be readily distinguished on its facts. It involved an employee who was advised by community legal centre to file a s 773 application. In the present case, there is no suggestion of representative error.
The absence of an acceptable or reasonable explanation for the delay in lodging the application on 14 June 2024 weighs against a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
Mr Trevaskis took action to dispute his dismissal by filing his unlawful termination application in the Commission. This weighs in support of Mr Trevaskis’s contention that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any significant prejudice that would accrue to SCC if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the general protections application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.
In his general protections application Mr Trevaskis contends that SCC has contravened the general protections provisions of the Act on the basis that he made a complaint to the Department of Communities and Justice on 3 May 2024 and was dismissed later that day. By terminating his employment, Mr Trevaskis contends that SCC has prevented him from utilising a workplace right.
SCC contends that it made the decision to terminate Mr Trevaskis’s employment before he made his complaint to the Department of Communities and Justice. SCC also contends that Mr Trevaskis’s complaint to the Department of Communities and Justice was not a complaint or inquiry within the meaning of s 341(c) of the Act.
The material before the Commission demonstrates that at 7:21am on 3 May 2024 Mr Trevaskis received a text message from Ms Sally Seaborn, the Community President of SCC. The text message contained a screenshot of the following message, sent “yesterday” (2 May 2024), from another member of the Management Committee, Ms Rosalie Osland to Ms Seaborn:
“Hi Sally, we have taken advice today from David Beddoe following his draft termination letter to Mark. At this stage he has advised that the majority of signatures are required. We have all signed and would like to offer you the opportunity to sign or decline. Please contact me if you have any questions and particularly if you would like to sign. We understand if you wish to decline signing. Thanks, Rosalie.”
After receiving this text message, Mr Trevaskis sent an email, at 8:01am on 3 May 2024, of complaint to Ms Seaborn and the Department of Communities and Justice. The subject of the email was Mr Trevaskis’s loss of confidence in the ability of the Committee to effectively govern SCC. Mr Trevaskis requested that the Department of Communities and Justice “take formal action and intervene with the Committee”.
At 9:22am on 3 May 2024, Ms Maureen Clinton, a member of the Management Committee at SCC, emailed a termination letter to Mr Trevaskis. The letter was signed by six members of the Management Committee of SCC, but not by Ms Seaborn, and stated, among other things, that:
“The majority of the Management Committee confirms that we have decided not to continue your employment beyond your probationary period. As a result, your employment will end on Friday, 17 May 2024…”
It is evident from this material that Mr Trevaskis’s prospects of being able to succeed in his claim that he was dismissed because he made a complaint to Ms Seaborn and the Department of Communities and Justice on 3 May 2024 are low. The text message from Ms Osland to Ms Seaborn on 2 May 2024 stating that “We have all signed” the termination letter is strong evidence that the decision to terminate Mr Trevaskis’s employment was made before he sent his letter of complaint to Ms Seaborn and the Department of Communities and Justice on 3 May 2024. In my assessment, it is likely that this evidence will overcome the reverse onus of proof required by s 361 of the Act.
In addition, many of the submissions advanced by Mr Trevaskis were directed to his contention that he was not afforded procedural fairness and his dismissal was harsh, unjust and unreasonable. But Mr Trevaskis was not employed by SCC for the minimum employment period, with the result that he was not eligible to bring an unfair dismissal claim. The claim being advanced by Mr Trevaskis in these proceedings is a general protections application, which is quite different from an unfair dismissal claim.
For the reasons explained and on the basis of the limited material before the Commission, I am of the view that Mr Trevaskis’s prospects of success in relation to his general protections application are weak. Having regard to all the circumstances, I consider the merits of the application to weigh against Mr Trevaskis’s argument that there are exceptional circumstances.
Fairness as between the person and other persons in a like position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.
I do not consider that there are any relevant matters concerning this consideration. I therefore consider this to be a neutral consideration.
Conclusion on extension of time application
Taking into consideration the matters I am required to take into account under s 366(2) of the Act and all of the matters raised by Mr Trevaskis, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. In my view, the circumstances of this case are not out of the ordinary course, unusual, special or uncommon.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2).
Outcome
Mr Trevaskis’s general protections application is dismissed because it was lodged in the Commission more than 21 days after his dismissal took effect and there are not any exceptional circumstances to warrant an extension of time being granted.
DEPUTY PRESIDENT
Appearances:
Mr M Trevaskis appeared for himself
Ms J Wilson, solicitor, appeared for the respondent
Hearing details:
2024.
Newcastle (by telephone)
18 July.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40].
[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[6] [2010] FWA 3939.
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